How Long Do Promises Of Confidentiality Last?

By
Daniel Schorr /
December 5, 1997

Is there such a thing as posthumous privilege? In a recent interview, Dr. Frederic Mailliez, the first physician to reach the accident scene in the Paris tunnel on Aug. 31, told The Times of London about the pain Princess Diana suffered, wedged in the back of the car.

Asked what the princess said, the French doctor replied that he could not repeat her words because "there is a duty between the doctor and the patient."

The question of whether the confidentiality obligation continues after death is not an easy one - not for doctors, or lawyers, or clergy, even journalists.

In the case of lawyer-client privilege, the question is now on its way to the Supreme Court. Nine days before his suicide in July 1993, White House lawyer Vincent Foster consulted another lawyer, James Hamilton, a respected veteran of the Watergate investigation. During their two-hour meeting, Mr. Hamilton took three pages of notes, with check marks and question marks next to some entries and some words underlined.

That is all the public knows about these notes, which are presumably related to some of the Whitewater and White House issues troubling Mr. Foster. Two years later, Whitewater independent counsel Kenneth Starr demanded those notes. Hamilton refused on the ground of lawyer-client privilege, the oldest privilege known to common law.

At issue is whether a client would speak freely to a lawyer if he thought his confidence would not survive his death. In the case of Foster, who would die by his own hand nine days later, questions of reputation and concern for family had obvious relevance.

Hamilton's refusal to give up the notes was upheld by the Federal District Court but then overruled by the Court of Appeals. Hamilton is now petitioning the Supreme Court to affirm his position.

AS a journalist, I have a certain interest in the issue of how long one is bound by a promise of confidentiality. The courts have, in general, given less weight to journalist-source privilege than to doctor, lawyer, and clergy privilege.

In 1976, threatened by the House Ethics Committee with a possible jail sentence for refusing to identify the source of a suppressed investigative report on the CIA, I was spared by a 6-to-5 vote.

In my testimony before the committee, I argued that to betray a source I had promised to protect would have the effect of drying up future sources for future journalists.

More than two decades later, I retain an almost visceral feeling about disclosing a source, dead or alive. In recent years, historians writing about the twilight of colonialism in Asia have urged me to disclose the source of a document I obtained in Indonesia in 1948. It was a less-than-unanimous, and therefore unauthorized, proposal of the United Nations Commission of Good Offices aimed at settling the Dutch-Indonesian conflict.

I broke the story in The Christian Science Monitor and Time magazine. The Dutch reacted by breaking off negotiations and resuming their military action against the Indonesian nationalists. Historians wanted to know in whose interest it was to torpedo the negotiations by leaking the document.

I don't know if that source of almost a half century ago is still alive. Yet so powerful is the grip of a journalistic tradition that I cannot bring myself to name the source.